govinfo:USCOURTS-ksd-5_19-cv-03088-2

IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF KANSAS 
 
 
PIDY T. TIGER, 
 
 Petitioner, 
 
v. CASE NO. 19-3088-SAC 
 
SAM CLINE, 
 
 
 Respondent. 
 
 
MEMORANDUM AND ORDER 
 
This matter comes before the Court on Petitioner’s amended 
petition, filed in response to the Court’s July 9, 2021 Memorandum 
and Order (“MO”). The Court has conducted an initial review of the 
amended petition and will direct Petitioner to submit additional 
information about the exhaustion of Ground 5. 
Background 
On May 8, 2019, Petitioner filed in this Court a petition for 
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) After 
conducting an initial review of the Petition under Rule 4 of the 
Rules Governing Section 2254 Cases in the United States Courts, the 
Court identified several deficiencies. The Court explained those 
deficiencies and directed Petitioner to show cause why the Court 
should not dismiss Grounds 1, 2, 7, 8, and 9.(Doc. 3, p. 10-11.) In 
his response, Petitioner added a new ground for relief, arguing for 
the first time that his convictions and sentence are illegal under 
McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). (Doc. 4, p. 4-6.) That 
ground for relief is hereinafter referred to as the McGirt claim. 
The Court considered the response and, on July 9, 2021, issued 

a second MO dismissing several grounds for relief and allow ing 
Petitioner the opportunity to file an amended petition that 
presented only the four surviving claims from the initial petition 
and the McGirt claim. (Doc. 5, p. 5-6.) Noting that it appeared 
Petitioner had not exhausted his state court remedies with respect 
to the McGirt claim nor did he appear to be procedurally barred 
from doing so , the Court directed Petitioner, in his amended 
petition, to further address the exhaustion of the McGirt claim. 
Id. at 7. Petitioner did so. 
Analysis 
A state prisoner must exhaust all available state -court 
remedies before pursuing federal habeas relief unless it appe ars 
there is an absence of available state corrective process or 
circumstances exist that render such process ineffective to protect 
the petitioner’s rights. See 28 U.S.C. § 2254(b)(1); see also Bland 
v. Simmons, 459 F.3d 999, 1011 (10th Cir. 2006) . Petitioner bears 
the burden to show he has exhausted available state remedies. 
Miranda v. Cooper , 967 F.2d 392, 398 (10th Cir. 1992); see also 
Parkhurst v. Pacheco, 809 Fed. Appx. 556, 557 (10th Cir. 2020). 
Even considering the information included in the amend ed 
petition, Petitioner has not met his burden to show he has exhausted 
available state remedies on the McGirt claim. In his response to 
the June MO, Petitioner asserted that he raised the McGirt claim in 
state district court, “which denied relief on Mar[c h] 19, 2021[,] 
ruling only that the petitioner’s sentence was ‘legal.’” (Doc. 4, p. 
8.) He asserted that he filed a notice of appeal and requested 
appointment of counsel, but the district court ha d not appointed 
counsel. Id. In its July MO, this Court note d that it appeared that 

Petitioner had not attempted to docket an appeal from th at ruling. 
(Doc. 5, p. 6.) 
In his amended petition, Petitioner concedes that he has failed 
to exhaust state remedies with respect to the McGirt claim. (Doc. 
6, p. 24 (“[T]his c ourt should consider petitioner’s failure to 
exhaust has occurred through no fault of his own.”).) 
 
“Generally, a federal court should dismiss unexhausted claims 
without prejudice so that the petitioner can pursue available 
state-court remedies. However, dismissal without prejudice for 
failure to exhaust state remedies is not appropriate if the 
state court would now find the claims procedurally barred on 
independent and adequate state procedural grounds. Where the 
relevant state courts would now find those claims procedurally 
barred, there is a procedural default for purposes of federal 
habeas review.” Grant v. Royal , 886 F.3d 874, 891 -92 (10th 
Cir. 2018) (internal citations and quotation marks omitted). 
Petitioner believes that he is now procedurally barred from 
pursuing his McGirt claim on appeal in the state courts. (Doc. 4, 
p. 8.) The Court expressed doubt as to the validity of that belief 
in its July MO, noting that although the time to docket an appeal 
may have expired, Kansas appellate courts have established a 
procedure for docketing an appeal out of time when there is good 
cause for failing to timely docket. (Doc. 5, p. 7.) 
In his amended petition, Petitioner asserts that he “has been 
unable to appeal [the district court’s] ruling [ in the action 
involving the McGirt claim] to a higher court due to the intentional 
and subversive tactics of the district court.” (Doc. 6, p. 24.) He 
contends that “[t]he district court has a history of not appointing 
counsel to file appeals for the petitioner which is required by 
statute.” Id. In support, he attaches a KCOA order entered in one 
of Petitioner’s other s tate-court appeals noting that Petitioner 
statutorily was entitled to appellate counsel in a 60 -1507 

proceeding and, although Petitioner had asked the district court to 
appoint counsel, it had not done so. (Doc. 6-1, p. 6-7.) 
That order also notes, however, that the “case was docketed in 
this court by Tiger without counsel.” Id. at 6. Thus, Petitioner 
knows how to docket an appeal without the assistance of counsel, 
undermining his argument that he could not pursue an appeal because 
the district court’s refu sal to appoint counsel. Moreover, the 
McGirt claim is jurisdictional, so this Court cannot conclude that 
it could not be raised in a state -court motion to correct illegal 
sentence pursuant to K.S.A. 22-3504.1 Finally, it appears from the 
online records of the Clerk of the Appellate Courts of Kansas that 
Petitioner has at least three cases currently pending in the Kansas 
appellate courts. See Tiger v. Judges Goering and Syrios , No. 
124,192 (mandamus action docketed July 26, 2021); State v. Tiger, 
No. 124,184 (60-1507 proceeding, motion to docket appeal out of 
time filed July 23, 2021); and State v. Tiger, No. 122,692 (60-1507 
proceeding, petition for review filed April 19, 2021). It is unclear 
from the online records, however, whether any of those actions 
include the McGirt claim. 
For the reasons stated above, the Court cannot rule out the 
possibility that the Kansas state courts would entertain the McGirt 
claim. 
 
“A district court confronted with a mixed petition [including 
both exhausted and unexhausted claims] may either ‘(1) dismiss 
the entire petition without prejudice in order to permit 
exhaustion of state remedies, or (2) deny the entire petition 
on the merits.’ The court may also permit the petitioner to 
 
1 “The court may correct an illegal sentence at any time while the defendant is 
serving such sentence.” K.S.A. 22-3504(a). “‘Illegal sentence’ means a 
sentence: Imposed by a court without jurisdiction . . . .” K.S.A. 22-
3504(c)(1). 

delete the unexhausted claim from his petition and proceed 
only on the exhausted claims, or, if the equities favor such 
an approach, it may stay the federal habeas petition and hold 
it in abeyance while the petitioner returns to state court to 
exhaust the previously unexhausted claims.” Wood v. McCollum, 
833 F.3d 1272, 1273 (10th Cir. 2016). 
 
Because additional information may resolve whether Petitioner 
has exhausted the McGirt claim or whether he is procedurally barred 
from doing so, the Court will direct Petitioner to inform the Court 
whether the McGirt claim is included in any action currently pending 
in a state court. If it is, Petitioner shall identify the action by 
case number and identify the state court in which the action is 
pending. If it is not, Petitioner shall so inform the Court and 
inform the Court whether he intends to raise it in any anticipated 
state-court action. Petitioner may also present any additional 
argument he wishes regarding his exhaustion of the McGirt claim or 
why this Court should consider the claim if it is unexhausted . A 
failure to comply with this order may result in the petition being 
dismissed without prejudice for failure to exhaust all claims. 
 
IT IS THEREFORE ORDERED that Petitioner is granted to and until 
August 30, 2021, to provide the Court, in writing, additional 
information regarding exhaustion of his McGirt claim. 
 
 IT IS SO ORDERED. 
 DATED: This 29th day of July, 2021, at Topeka, Kansas. 
 
 S/ Sam A. Crow 
 SAM A. CROW 
U.S. Senior District Judge 

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